Follow the Flag

This is the quintessential question this blog seeks to answer. It is my hope and plan to cover developments in both the law and academia, by reviewing cases and interesting pieces of scholarship that shed light on this question, while also providing my own thoughts and insights, as someone who has been considering the question for over 15 years.

To help get a better grasp of the underlying issues, I thought it would be helpful to give a brief overview of some of the major cases in the area, to see where we've been and where we are going. I will do more in-depth examinations of each of these cases (and others) in future posts.

One final note before we delve into this post - this is only the briefest of overviews and is far from comprehensive. Think of it as a journey from Seattle to San Diego - we're not going to identify every little town along the way, but we'll note the major cities on the journey.

In re Ross, 140 U.S. 453 (1891) - Ross dealt with a seaman on an American-flagged vessel in Yokohama Harbor, Japan, who committed murder on board ship. Under the terms of a treaty with Japan, Ross was tried and convicted in a consular court by the US Consular General. He was sentenced to death and transferred to the United States. Ross challenged the conviction on two grounds - first, he argued that as a Canadian citizen, he was not subject to the jurisdiction of the consular court. Second, he argued that he could not be held for the charge except upon presentment or indictment of a grand jury, under the terms of the Fifth Amendment. The Court rejected both arguments. As a sailor on an American-flagged vessel, Ross was subject to American law. As to the claim under the Fifth Amendment, the Court held that "the Constitution can have no operation in another country." Thus, no one could claim the protections of the Constitution outside the territorial boundaries of the United States.

The Insular Cases, (1901-1923) - The Insular Cases were a series of Supreme Court decisions dealing with the application of the Constitution to the so-called "insular territories," those acquired after the Spanish-American War. These included, at the time, Puerto Rico, Cuba, and the Phillippines. Today, they apply with equal force to Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. The cases covered multiple provisions of the Constitution, beginning with the Uniform Duty Clause of Article I, and encompassing the right to a jury trial under the Sixth Amendment. The Court ultimately concluded that, while fundamental rights would apply of their own force to these territories, procedural rights, like the jury trial, would not apply unless Congress took some affirmative steps.

Johnson v. Eisentrager, 339 U.S. 763 (1950) - Eisentrager addressed the question of whether foreign enemies, who had never set foot in the United States, could claim the protections of the Constitution. Eisentrager was one of eight German prisoners of war, who were captured and tried by military commission in China and transferred to an American-run prison in Germany for incarceration. They sought a writ of habeas corpus in the District Court for the District of Columbia, arguing that their trial and continued detention violated Articles I and III of the Constitution, as well as the Fifth Amendment. The Court denied the claim. It held that enemy aliens, with no ties to the United States, had no right to claim the protections of the Fifth Amendment. Two key arguments come from this case: 1) "The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society." 339 U.S. at 770. In other words, the more contact an alien has with the United States, the greater his claims on the protections of the Constitution; and 2) "Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it." 339 U.S. 784-785 (internal citations omitted).

Reid v. Covert, 354 U.S. 1 (1957) - Reid actually consolidated two cases, both dealing with wives of servicemen who murdered their husbands while stationed overseas. Both were tried by military courts martial and sentenced to life imprisonment. They argued that such courts martial violated the Fifth and Sixth Amendments. Here, the Court sided with the women. In a four-justice plurality opinion, Justice Hugo Black wrote: "At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land." 354 U.S. at 5-6 (footnotes omitted). Thus, Justice Black would have emphatically protected the rights, at least of American citizens, to the protection of the Constitution, wherever the United States attempted to prosecute them. In addressing Ross and The Insular Cases, Black believed they were relics of history and best left there. "[W]e can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of 'Thou shalt nots' which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments." 354 U.S. at 9. The second Justice Harlan concurred, but on much narrower grounds. He argued that the proper way to judge when the protections of the Constitution should apply is when providing those protections would not be "impracticable or anomalous." In this case, given that the women faced the penalty of death, the Government should be required to transport them home and try them before a civilian court.

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) - Verdugo-Urquidez concerned a claim by a Mexican national that a search of his home, in Mexico, by U.S. Drug Enforcement Agency agents, violated the Fourth Amendment, because they lacked a warrant. After the search of his home, he was arrested and brought to the U.S. for trial. He argued that the evidence should be suppressed. Chief Justice Rehnquist wrote an opinion for four justices holding that the Fourth Amendment did not apply to foreigners who lacked "substantial connections" with the United States. Specifically, he wrote: "[The Fourth Amendment], by contrast with the Fifth and Sixth Amendments, extends its reach only to 'the people.' ... 'the people' seems to have been a term of art employed in select parts of the Constitution." 494 U.S. at 265. Thus, because the Fourth Amendment protected only "the people" and since Verdugo-Urquidez's only connection to the United States was his presence for trial, he was not protected. Justice Kennedy filed a concurring opinion, which provided the fifth vote. While he stated that his opinion did not differ from Rehnquist's, he relied on Justice Harlan's "impracticable and anomalous" test in Reid, and held that it would be impractical to apply the Fourth Amendment's warrant requirement outside of the United States. First, there were no judges with jurisdiction to issue such a warrant; second, Mexican notions of privacy might be so foreign to our own as to make a judgment about the reasonableness of the search impossible; and third, applying the Fourth Amendment could interfere with our relations with the Mexican government.

Boumediene v. Bush, 553 U.S. 723 (2008) - Most recently, the Court finally adopted the "impracticable and anomalous" test from Reid when it held that the writ of habeas corpus could not be denied to enemy aliens held in U.S. military custody in Guantanmo Bay, Cuba. Under the Suspension Clause, the writ of habeas corpus may only be suspended by Congress during times of rebellion or civil unrest. Furthermore, because the United States exercises de facto sovereignty over the naval base at Guantanamo Bay, the prisoners are, for all intents and purposes, within U.S. territory. Given this U.S. control, it would not be impracticable or anomalous to extend the writ of habeas corpus to those imprisoned on the island.

This concludes our brief survey of the history of the extraterritorial application of the Constitution. Thanks for reading this far. As I noted above, I will be exploring each of these decisions, as well as others, in more depth in future posts. For now, I welcome any questions or comments.